Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL No. 26006 of 2024 (Arising out of Land Application No. 119 of2020, at the District Land and Housing Tribunal of Temeke, Hon. K.A. Sosthenes, Chairman dated 15th November 2023) REHEMA HEMED KILINDO.................................. 1st APPELLANT PILI SHIJA SOMBI............................................... 2nd APPELLANT Versus ABEL AISON MWAKABENGA.............................. 1ST RESPONDENT ABDALLAH OMARY NGINGITE (administrator of the estate of the late Kautila Ali Kautila)............ 2ND RESPONDENT HEMEDY ALLY KAUTILA..................................... 3RD RESPONDENT JUGMENT Date of last Order: 26/11/2024 Date of Ruling: 29/11/2024 LALTAIKA, J, The Appellants herein REHEMA HEMED KILINDO and PILI SHIJA SOMBI are dissatisfied with the decision of the District Land and Housing Tribunal for Temeke in Land Application Noll9 of 2020. They Page 1 of 15 have appealed to this Court by way of a Petition of Appeal containing the following grounds: 1. That, the judgment of the Trial Chairman is inconsistent with the evidence on record and proceedings. 2. That, the Trial Chairman erred in law and fact by framing and determining the issue of validity of the marriage between the appellants and the 2nd respondent while he had no jurisdiction to determine matrimonial issues. 3. That, the Trial Chairman erred in law and fact by wrongly applying the principle ofparties being bound by their pleadings singlehandedly relying on the written statement of defence of the 2nd respondent filed by one Baraka Mukama who was not qualified to practice law as an advocate and ignoring the oral testimony of the 2nd respondent. 4. That, the Tria! Chairman, erred in law and fact by disregarding the opinion of the assessors without providing reasons for departing from their opinions 5. That, the Trial Chairperson erred in law and fact by granting the reliefs in the counter claim based on a sale agreement which was not signed by the 2nd respondent as the vendor and without evidence to support the finding arrived at. 6. That, the Trial Chairman erred in law and fact by awarding the 1st respondent special damages in the counter claim without specific proof as required by the law. When the appeal was called for mention on the 25th day of October 2024 Representation by Counsel was as follows: Mr. Abdul Kalamba, learned Advocate appeared for the Appellant while also holding brief for Mr. Gabriel Maros, Advocate, Counsel for the 1st Respondent. Mr. Raymond Swai, learned Advocate, appeared for the 2nd and 3rd Respondents. Parties opted for hearing by way of written submissions. With a nod of approval by this Court, the following schedule was ordered: Applicants' submission in chief: 7/11/2024 Respondents' Reply: 20/11/2024, Page 2 of 15 Appellants' rejoinder if any:26/ll/2024 Mention to set the date of Judgment: 26/11/2024 at 10:00 I take this opportunity to register my commendations to counsel for their spotless compliance with the scheduled order. This sense of time management which is growing among Counsel in this country is essential for enabling this Court to fulfil its Constitutional mandate of timely dispensation of justice. The next part of this Judgment is, in that order, a summary of submissions by both parties, my analysis of the law and the verdict. It should be noted however that as per the Court records, appellant's documents were drafted by Mr. Huruma NTAHEMA, learned Advocate. Taking up the podium on behalf of the Appellants, Mr. Ntahema stated that he would address each ground individually. Counsel argued that the Appellants had provided sufficient evidence to substantiate their claim that they were lawful wives of the 2nd Respondent and that the farm in question was a matrimonial asset acquired with their contributions. He emphasized that the Village Chairman who allocated the land, as well as the 1st Respondent's own witness, confirmed the Appellants' long­ term residence and cultivation of the farm. He submitted that the DLHT Page 3 of 15 erred in dismissing the Appellants' evidence, inappropriately shifting the burden of proof to them, and failing to recognize their marital status, which required spousal consent under section 59(1) of the Law of Marriage Act and section 117 of the Land Act before disposing of the matrimonial asset. He prayed that the sale of the farm between the 1st and 2nd Respondents be invalidated. On the second ground, Mr. Ntahema submitted that the DLHT had exceeded its mandate by framing and determining an issue related to marriage, relying on unsupported findings, and departing from its jurisdiction. He cited the case of Chacha Juma Magoko v. Mwita Juma Magoko & Another [2024] TZCA 781, where similar overreach was deemed a fatal irregularity. He prayed that the court quash the proceedings and set aside the DLHT's judgment. Regarding the third ground, Mr. Ntahema contended that the DLHT had misapplied the principle that parties are bound by their pleadings. He argued that this principle could not override the weight of oral testimony provided during the hearing, particularly when the pleadings in question were defective. He pointed out that the 2nd Respondent's written statement of defence was filed by an unqualified person, rendering it invalid. Page 4 of 15 On the fourth ground, Mr. Ntahema submitted that the trial Chairperson had erred in law and fact by disregarding the unanimous opinion of the assessors without providing reasons. He noted that the assessors, who are judges of fact, had opined that the Appellants proved their case and that the sale agreement was invalid due to lack of spousal consent. He argued that the Chairperson's departure from this opinion, especially when supported by the evidence on record, constituted a misdirection. He prayed that this ground of appeal be allowed, and the decision of the DLHT be varied in line with the assessors' opinion. Mr. Maros, Counsel for the 1st Respondent, forcefully opposed the Appellant's submission. He argued that the 2nd Respondent's oral testimony contradicted his own defense. He referred to the case of Abel Onia @ Matiku & Others v. Republic (2024) TZCA 7S, Tanzlii, where it was emphasized that a witness who contradicts themselves should not be believed. He noted that when a witness is proven to have made statements on oath inconsistent with their prior statements, their credibility is destroyed. Mr. Maros contended that the appellants could not argue that their evidence was supported by the 2nd Respondent, whether regarding claims of being wives, being divorced, or ownership of the disputed land. He stressed that the burden of proving ownership lay with the appellants, Page 5 of 15 not the 2nd Respondent, and argued that the DLHT for Temeke had rightly disregarded the appellants’ evidence as it was weak and unsupported by documentary evidence compared to that of the 1st Respondent. He therefore asserted that this limb of the appeal failed. Addressing the second ground of appeal, Mr. Maros argued that the appellants' claim that the trial chairman erred by framing and determining the issue of the validity of marriage between the appellants and the 2nd Respondent was unfounded. He maintained that the trial tribunal had jurisdiction over land matters, as vested by the relevant legislation, and that it did not act as a matrimonial court. Counsel pointed out that on June 2, 2024, the tribunal framed three land-related issues, namely: (1) who is the legal owner of the disputed land between the applicant and the 1st Respondent, (2) whether the 1st Respondent trespassed on the disputed land, and (3) the reliefs to which the parties were entitled. He further argued that the appellants themselves had introduced matrimonial facts in their application, as evidenced in the pleadings, particularly paragraphs 7(a)(i)(ii)(viii), and in the testimonies of PW1, PW2, PW3, and PW4. He questioned whether the appellants could legally benefit from their own wrong of introducing irrelevant matters, and he opined that they could not. He explained that the tribunal, in determining Page 6 of 15 the framed issues, was compelled to consider the pleadings and evidence on record to justify its findings. He contended that the appellants could not later claim error by the tribunal after having adduced such facts themselves. Mr. Maros rejected the appellants' reliance on the case of Chacha Juma Magoko v. Mwita Juma Magoko & Another, (supra) distinguishing it on the basis that in the cited case, the tribunal had improperly mixed land issues with probate and matrimonial matters, whereas in the present case, the tribunal's framed issues were purely land-related and within its jurisdiction. He reiterated that even if the 2nd Respondent's oral testimony admitted certain claims by the appellants, such as being wives or cohabiting, this testimony contradicted his defense and amounted to an afterthought, rendering it unreliable. He again cited the case of Abel Onia @ Matiku & Others v. Republic, emphasizing that a contradictory witness should not be believed. On this basis, Mr. Maros prayed that the second limb of the appeal be dismissed with costs. Finally, addressing the third ground of appeal, Mr. Maros contested the claim that the trial chairman erred in applying the principle of parties being bound by their pleadings, allegedly relying solely on the 2nd Respondent's written statement of defense prepared by one Baraka Mkama, who was Page 7 of 15 not qualified to practice law, while ignoring the 2nd Respondent's oral testimony. Mr. Ntahema, while supporting the 4th to the 6th grounds of appeal, argued that the Trial Chairperson erred in law and fact by disregarding the opinion of the assessors without providing reasons for departing from their opinions. He referred to page 14 of the typed judgment of the District Land and Housing Tribunal (DLHT), where the Tribunal acknowledged the opinions of the assessors but ultimately decided not to follow them. He pointed out that both assessors had agreed that the appellants had proven their case, particularly regarding the invalidity of the purported sale agreement between the 1st and 2nd respondents for want of spousal consent. This agreement, according to the assessors, was not valid since the 2nd respondent had not provided evidence of a divorce and had admitted during the hearing that the appellants were still his wives and that the property in question had been acquired during their subsistence of marriage. Mr. Ntahema submitted that the Trial Chairperson misdirected himself by disregarding the testimony of the 2nd respondent and departing from the assessors' opinion without justification. He humbly prayed that the court allow the 4th ground of appeal and vary the decision of the DLHT in line with the assessors' opinion. Page 8 of 15 On the 5th ground of appeal, Mr. Ntahema submitted that the Trial Chairperson erred by granting reliefs in the counterclaim based on a sale agreement that was not signed by the 2nd respondent as the vendor and was unsupported by evidence. He argued that the appellants, being lawful wives of the 2nd respondent, never consented to the disposition of the family farm. He emphasized inconsistencies in the 1st respondent's pleadings, particularly the sale agreement (Exhibit DI), which appeared to involve the 2nd respondent's son, Ally Kautila Ally, rather than the 2nd respondent himself. He questioned the validity of the agreement and pointed out that the contract lacked necessary conditions, such as the provision of 21 plots to the 2nd respondent after a survey, as referenced in another document dated November 18, 2019. He further contended that the DLHT had failed to properly evaluate the evidence, which would have led to the conclusion that the sale agreement was invalid for want of spousal consent and due to ambiguities regarding the seller's identity. He prayed for the 5th ground of appeal to be allowed and the counterclaim dismissed with costs. Regarding the 6th ground of appeal, Mr. Ntahema argued that the Trial Chairperson erred in awarding special damages of TZS 10,000,000 to the 1st respondent without specific proof, contrary to established legal principles. He cited Civil Appeal No. 287 of 2020, Puma Energy Page 9 of 15 Tanzania Limited v. Ruby Roadways (unreported), where the Court of Appeal of Tanzania reaffirmed that special damages must be specifically pleaded and strictly proved. He noted that the Trial Chairperson confused special damages with general damages, awarding the former without any evidence to justify the amount. Mr. Swai, Counsel for the 2nd and 3rd Respondents, stated that after reviewing the appellants' submissions in chief, his clients supported the appeal and relied on the appellants' arguments. However, he sought to elaborate on the first and fifth grounds of appeal, which were not adequately addressed in the appellants' submissions. Regarding the first ground of appeal, he submitted that the judgment of the Tribunal was inconsistent with the evidence and proceedings. He explained that the 2nd Respondent, Abdallah Omary Ngingite, was the administrator of the estate of his grandfather, Kautila Ali Kautila, while the 3rd Respondent was a son of the deceased. He argued that the Tribunal erred in concluding that the appellants were not wives of the late Kautila despite evidence to the contrary. Mr. Swai pointed out that testimony from witnesses, including the 2nd Respondent himself and others such as SM3, supported the claim that the appellants were recognized as wives and that the family farm had been allocated to them due to this status. He further emphasized the lack of Page 10 of 15 testimony or evidence suggesting that the marriages had ended or that the land had been validly sold to the 1st Respondent. On the second ground of appeal, Mr. Swai contended that the Tribunal erred in framing and determining the issue of the validity of the marriages between the appellants and the 2nd Respondent, as it lacked jurisdiction over matrimonial matters. He argued that such issues fell under the jurisdiction of the matrimonial court for the Dar es Salaam region. Concerning the third ground of appeal, he criticized the Tribunal for overly relying on the written statement of defence prepared by an unqualified person, Baraka Mukama, and disregarding the oral testimony of the 2nd Respondent. He maintained that the principle of parties being bound by their pleadings should not prejudice the opposite party, particularly when deviation from pleadings provided an advantage to one side. He emphasized that the Tribunal should have considered the oral admissions made by the 2nd Respondent during the hearing. Regarding the fourth ground, Mr. Swai argued that the Tribunal erred by disregarding the opinions of assessors without offering reasons for doing so. He reiterated that the evidence presented, including testimony from multiple witnesses, confirmed that the appellants were wives of the 2nd Respondent and that there was no valid disposition of the land in dispute. Page 11 of 15 On the fifth ground of appeal, he raised doubts about the sale agreement relied upon by the Tribunal. He outlined inconsistencies in the agreement, such as the discrepancy in the name of the landowner, the lack of authorization for the hamlet chairman (SU1) to witness the agreement, and procedural irregularities in the contract's execution. He cited testimony from witnesses, including SM3, which cast further doubt on the validity of the agreement. In conclusion, Mr. Swai submitted that the Tribunal's findings were inconsistent with the evidence on record. He urged the court to allow the appeal, asserting that the appellants had proven their claims regarding the land and their status as wives of the 2nd Respondent. Additionally, since the 2nd and 3rd Respondents supported the appeal, he requested that they not be condemned to costs. Mr. Ntahema, Counsel for the Appellants, in his rejoinder submission, reiterated his earlier submissions, emphasizing that the evidence presented at the DLHT supported the appellants' case. He prayed for the court to allow the grounds of appeal. I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also thoroughly examined the trial Tribunal's records. My role as the first appellate Court is akin to rehearing. I am duty bound to reevaluate the entire evidence and take a different Page 12 of 15 position if the need so arises. Mindful of this position, the following issues crystallize for my determination: 1. Whether the DLHT misdirected itself in evaluating the evidence presented. 2. Whether the DLHT had jurisdiction to determine matrimonial issues intertwined with land ownership. 3. Whether the assessors' opinions were disregarded contrary to legal requirements. 4. Whether the counterclaim was sufficiently proved. Apparently, the DLHT relied on a contested sale agreement to determine the ownership of the land. However, as submitted by the appellants, section 111(1) of the Village Land Act (supra) requires land sales in village areas to be approved by village authorities. The evidence of SM3, the village chairman, casts doubt on the authenticity of the sale agreement. The appellants also highlighted inconsistencies in the respondent's testimony and documents. In Mariam Shabani v. Ally Nchimbi (Supra) the apex Court held that where evidence is inconsistent, the party relying on it bears the burden of reconciling the discrepancies. It is my finding that the 1st respondent failed to do so. Page 13 of 15 The DLHT ventured into determining whether the disputed land constituted matrimonial property. This matter, as correctly argued by the appellants, falls under the jurisdiction of the Matrimonial Court. In Ngakurwa Mishewa v. Paskazia Magori [1992] TLR 174, it was held that land disputes intertwined with matrimonial issues must be referred to the appropriate forum. Section 24 of the Land Disputes CcwrfcArf obligates the Chairperson to consider assessors' opinions and provide reasons for departing from them. In this case, the DLHT disregarded both assessors' opinions, which favoured the appellants, without providing reasons. This procedural irregularity vitiates the judgment. Although the maxim voxpopuli vox dei (the voice of the people is the voice of God) is not always applicable in law, one cannot help but wonder why even at this appellate state, the rest of the Respondents have teamed up to support the appellant as argued by Mr. Swai. Finally, on the counterclaim, it is my finding that the counterclaim rested on the validity of the sale agreement, which was not supported by credible evidence. In Joseph Maganga v. Hamisi Sefu it was held that agreements for the sale of land be corroborated by reliable witnesses. The respondent failed to meet this standard. Page 14 of 15 Premised on the above, I allow the appeal. The DLHT's decision is set aside, and the following orders are made: 1. The appellants are declared lawful owners of the disputed land. 2. The sale agreement purportedly executed by the respondents is declared null and void. 3. The respondents are permanently restrained from interfering with the appellants' occupation of the land. 4. Costs of the appeal are awarded to the appellants. It is so ordered. E.I. LALTAIKA JUDGE 29/11/2024 Court: Judgment delivered in Court Chambers this 29th day of November 2029 in the presence of Mr. Abdul Kalamba, learned Advocate for the Appellants also holding brief for Mr. Raymond Swai, learned Advocate, Counsel for the 2nd and 3rd Respondent as well as the 3rd Respondent. Page 15 of 15